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Setting Aside Default Judgement: How Prompt do you need to be?

Adam Swirsky explores how prompt you need to be when applying to set aside a default judgment in the recent case of Points of View v Erre DB Group SA [2021] 2 WLUK 70.

Adam Swirsky

It is now well established that, on an application to set aside a default judgment, in addition to the specific grounds set out in CPR 13, the court must also have regard to the three-stage test in Denton v TH White Ltd [2014] EWCA Civ 906. The specific requirements of CPR Part 13.3 are that the defendant must show that they have a real prospect of successfully defending the claim or that there is some other good reason why the judgment should be set aside or varied. Importantly, the court must also have regard to whether the person seeking to set aside the judgment made an application to do so promptly.

The question as to whether or not the application has been made promptly can be problematic. All cases are, of course, decided on their own facts but past decisions are often difficult to reconcile. In Barons Bridging Finance Plc v Nnadiekwe [2012] EWHC 2817 (Comm) the court set aside a judgment entered several years earlier because there were very serious conflicts of evidence between the parties and the defendant alleged that she was the victim of fraud. At the other end of the spectrum, in Hart Investments Ltd v Fidler [2006] EWHC 2857 (TCC) the judge concluded that a delay of 59 days was “very much at the outer edge of what could possibly be acceptable” whilst in Regency Rolls Ltd. v. Murat Carnall [2000] EWCA (Civ) 379 Simon Brown LJ thought that 30 days was altogether too long a delay (although this was not a set aside case).

In the recent case of Points of View v Erre DB Group SA [2021] 2 WLUK 70 the court formed the view that 26 days was too long. Whilst accepting that the defendant had established that its defence had a real prospect of success, the court decided that, because the defendant had not to engaged with the court process, there was no excuse for its failure to follow the procedural rules and, despite being made just 26 days after finding out about the judgment, the application to set aside had not been made promptly and was too late.

The moral? Don’t ignore litigation and don’t take the risk of having to make an application to set aside judgment.

 

 

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